Kerala High Court
K. Jayachandran vs O. Nargeese And Anr. on 10 April, 1987
Equivalent citations: 1987CRILJ1997
ORDER S. Padmanabhan, J.
1. In this petition filed under Section 482 of the Code of Criminal Procedure (for short 'the Code') the petitioner is the accused who was prosecuted in S.T. No. 1401 of 1984 before the Judicial First Class Magistrate, Quilon in a private complaint for offences punishable under Sections 279 and 338 of the Indian Penal Code.
2. Both the offences are triable as summons case. Procedure for trial of Summons Cases is provided in Chap. XX of the Code. Particulars of the offence will have to be stated and the plea of the accused recorded. Then the prosecution evidence and defence evidence will have to be recorded. Acquittal or conviction must follow. These are also offences triable in a summary way as provided in Chap. XXI. Procedure is the same as in summons trial except (1) no sentence of imprisonment exceeding three months shall be imposed on conviction, (2) the particulars including the plea, the finding and the sentence or final order shall be entered in a register, and (3) substance of the evidence and brief reasons for the finding alone need be recorded.
3. Though the case was taken to file as an S.T. the Magistrate recorded the evidence for witnesses in full in chief, cross and re-examinations and not merely a summary as provided in the case of summary trials in Section 264. Five witnesses were examined for the prosecution and thereafter the accused was questioned under Section 313. Two defence witnesses were then examined. The case was then heard and posted for judgment. Before pronouncing the judgment the Magistrate was transferred. The successor also heard the case and posted the same for judgment to 28-8-1986. On that day instead of pronouncing the judgment the Magistrate passed the following order:
This being a S.T. case and evidence was recorded by my predecessor, fresh evidence has to be recorded. In the interest of justice the case is converted as C.C. 207/86 and posted for evidence.
Cri. R. P. 101 of 1986 filed by the accused against that order was dismissed by the Sessions Judge, Quilon. Hence he approached this Court under Section 482 of the Code for quashing the orders and for a direction to the Magistrate to dispose of the case with the evidence on record.
4. The Magistrate presumably acted under Section 326(3) of the new Code when he ordered re-trial. The Sessions Judge specifically stated that the order of the Magistrate is correct because by the provisions of Section 326(3) it would have been illegal on his part to have decided the case on the evidence recorded by his predecessor. The Sessions Judge has stated that one of the important principles of criminal jurisprudence is that a person who heard the entire evidence alone must give the judgment and Section 326(1) is a departure from that provision. The view expressed by the Sessions Judge is fully correct also. Section 326(1) was there practically in the old Code also in the form of Section 350. This provision was mainly intended to avoid the delays in disposal of cases consequent on the frequent transfer of Magistrates. Section 326(3) was also there in the previous Code in the form of Section 350(2) with the difference that the exclusion of the operation of the provision was not made applicable to summary trials.
5. The provision has to be interpreted in the background of the legislative intent to avoid delays in the trial and disposal of cases and also to avoid prejudice to the accused. In this connection it is worth remembering that even though the procedure for trial in summons cases and summary trial cases is practically the same, the legislature in its wisdom did not think it fit to exclude summons trial cases from the purview of Section 326(1). What is excluded is only 'summary trials' and not cases that could be tried in a summary way. That means cases tried under the provisions of Chap. XXI alone are intended to be excluded. This is a case in which judgment was not pronounced and therefore the only evidence available to decide what procedure was actually followed by the Magistrate is the procedure adopted by him in the trial of the case. No record was maintained under Section 263 of the Code. If actually trial was under Chap. XXI there must have been a register under Section 263 in which items (a) to (g) mentioned therein ought to have been entered. So also in cases tried in a summary way the Magistrate is bound to record only a substance of the evidence of witnesses, but in this case the entire evidence of all the witnesses was recorded in full. The fact that after hearing the case the Magistrate reserved" judgment also, though not conclusively, establishes that he wanted to write a considered judgment on analysing the evidence recorded in full on both sides. Thus the records show that trial was conducted under Chap. XX relating to trial of Summons Cases and not under Chap. XXI relating to Summary trials.
6. When in the interest of expediency in disposal of cases the legislature did not want to exclude any other case including Summons Cases from the operation of Section 326(1), the exclusion of Summary trial could only be on account of the possible prejudice to the accused and the difficulty of the successor Magistrate in deciding the case fairly and properly with the evidence on record. This prejudice and difficulty could only be on account of the fact that under Section 264 the Magistrate need only record the substance of the evidence. From the substance of the evidence so recorded, the person who recorded the same could have had a full and complete picture because he had the advantage of hearing the evidence in full and seeing the witness in the box as well as forming an opinion. These advantages may not be there to the successor and he could gather information only from the substance of the evidence before him. That may be the reason why summary trials alone were excluded from the proviso of Section 326(1) while summons cases and other serious trials are not excluded. If that is the position, the possibility of that prejudice to the accused or the difficulty of the successor are not there in this case since the evidence was recorded in full. In construing Section 326(3) we are more concerned with the substance than with the form. If in substance the case was not tried in a summary, way but as a regular summons case it cannot, come within the exclusion of 'Summary Trials' because cases tried in a summary way alone could come under 'Summary Trials', Cases though titled as Summary Trial Cases but not tried as such cannot come within the exclusion because the object and purpose of the provision is not to exclude any case tried in the ordinary way namely, summons cases, warrant cases instituted on police report and warrant cases instituted otherwise than on police report, which are the only other types of cases coming up before Magistrates. In this connection Section 274 of the Code authorising the Magistrate to make a memorandum of the substance of the evidence of witnesses in certain proceedings including trial of Summons Cases is of no avail because it is clear from Section 326 itself that the memorandum of the substance of the evidence recorded could be made use of by the successor also as held in 1969 Cri. L. J. 711. What is stated in Section 264 is only substance of the 'evidence' whereas what is stated in Section 274 is 'memorandum of the substance of the evidence'. That memorandum could be used by the successor was not a moot point also. Even such a memorandum is not necessary in a summary trial.
7. What Section 326(1) has done is only authorising the successor to act on the evidence partly or wholly recorded by the predecessor. In this respect also discretion is given to the successor, in the interest of justice, to re-summon and examine any witness already examined. I do not think that in this case the Magistrate was entitled to anything more than what Section 326(1) provides because even though the case was numbered as an S.T. case the witnesses were examined and the evidence was recorded in full as if it was a summons case not tried in a summary way. Section 259 of the Code authorises conversion of a summons case into a warrant case even in the course of trial. Trial in a summary way by certain categories of Magistrates specified in Section 260 is only discretionary and that procedure need be adopted only if the Magistrate thinks fit to do so. So also Section 260(2) authorises the Magistrate during trial in a summary way to recall the witnesses and proceed to rehear the case in the manner provided by the Code if it appears to him that it is desirable to do so. Only certain categories of cases are allowed to be tried in a summary was and even in such cases it is for the Magistrate to consider whether the summary procedure would be appropriate to the case or not. Normally summary procedure should be confined to cases of simple nature where much evidence is not needed and which are J not hotly contested.
8. Anyhow there cannot be any dispute that expediency in the trial and disposal of cases is the main purpose and object and that j purpose and object is only accelerated in this case if a re-trial is dispensed with. The accused who is likely to be prejudiced says that retrial will be to his prejudice and the prosecution has no grievance that re-trial is necessary in the ends of justice. Whether the procedure actually adopted is summary or ordinary has to be seen from the record. Where the evidence of all the witnesses are recorded in full together with their cross-examination it could only be said that the case was not tried summarily as a reference to Sections 263 and 264 would show that such a detailed record is not necessary.
9. In Jagnarayan v. Batpara Municipality, (1941) 45 Cal WN 139 of the fact that evidence of all witnesses was recorded in / full together with their cross-examination was relied on to find that the case was not tried summarily. In Emperor v. Durgaprasad AIR 1940 Nag 239 : 41 Cri LJ 782 it was held that it depends on the way in which the evidence has been recorded in each case whether Section 350 (Section 326 of the new Code) would apply or not. Where the prosecution evidence in a summary case was recorded by the Magistrate in extenso in narrative form at least quite as fully as it would have been in a summons case, that decision said that Section 350 would apply to such evidence. It is true that at that time summary trial cases were not excluded from the operation of Section 350.
10. I do not agree with the Sessions Judge that had the Magistrate acted on the evidence recorded by his predecessor in office and pronounced the judgment it would have been illegal, such a contingency would have arisen only if the case was tried in a summary way. When it is not tried in a summary way the provisions of Section 326(1) are squarely applicable to this case and the exclusion in Section 326(3) will not apply. The only reasons alleged by the Magistrate are (1) this is a S.T. case and evidence was recorded by his predecessor and (2) in the interest of justice it has to be converted as C.C. What is the interest of justice has not been specified. Interest of justice is only in favour of avoiding the' unnecessary ordeal of a re-trial which will cause delay in disposal of the case and harassment to the accused and witnesses. Such an unnecessary re-trial will, in the circumstances detailed above, be an abuse of the process of court.
The orders of the Magistrate and Sessions Judge are therefore quashed and the Magistrate is directed to dispose of the case according to law with the evidence already on record subject to the provisions of Section 326(1) and the proviso thereto.